Citation Nr: 1037838
Decision Date: 10/06/10 Archive Date: 10/15/10
DOCKET NO. 05-34 381 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for a lung disorder due to
exposure to asbestos.
2. Entitlement to service connection for silicosis.
3. Entitlement to service connection for bilateral hearing loss.
4. Entitlement to service connection for bilateral tinnitus.
REPRESENTATION
Appellant represented by: Daniel G. Krasnegor, Attorney
at Law
ATTORNEY FOR THE BOARD
Ann L. Kreske, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1962 to October 1966.
This appeal originally came before the Board of Veterans' Appeals
(Board) from a November 2004 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama.
In May 2009, the Board denied the Veteran's claims for service
connection for a lung disorder as due to exposure to asbestos,
silicosis, bilateral hearing loss, and bilateral tinnitus. The
Veteran appealed the May 2009 Board decision to the United States
Court of Appeals for Veterans Claims (Court). In a May 2010
Order, the Court remanded this appeal for further development
consistent with instructions in a Joint Motion for Remand. The
case is now before the Board for further appellate consideration
pursuant to the Court's order.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
In this case, pursuant to the May 2010 Court Order, this matter
is remanded for further evidentiary development.
Initially, with regard to the claim of service connection for a
lung disorder as due to exposure to asbestos, the Joint Remand
notes that VA failed to satisfy its duty to assist by further
developing evidence concerning whether the Veteran was exposed to
asbestos during service, which, in turn, led to an inadequate VA
examination in September 2008, during which time the VA examiner
indicated that the Veteran's in-service exposure to asbestosis
was "unclear" and was unable to provide a medical nexus opinion
regarding the Veteran's diagnosed asbestosis and any exposure to
asbestosis during service.
In this regard, VA Adjudication Procedure Manual Rewrite (M21-
1MR) provides that VA must determine whether military records
demonstrate evidence of asbestos exposure during service, develop
whether there was pre-service and/or post-service occupational
and other asbestos exposure, and determine whether there is a
relationship between asbestos exposure and the claimed disease.
For many asbestos-related diseases, the latency period varies
from 10 to 45 or more years between first exposure and
development of the disease. Id. at IV.ii.2.C.9.d. An asbestos-
related disease can develop from brief exposure to asbestos. Id.
VA must analyze the Veteran's claim for service connection for
asbestos-related disease under these administrative protocols
using the aforementioned criteria. Ennis v. Brown, 4 Vet. App.
523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).
With asbestos-related claims, the Board also must determine
whether the claim development procedures applicable to such
claims have been followed. Ashford v. Brown, 10 Vet. App. 120,
124-125 (1997) (while holding that the Veteran's claim had been
properly developed and adjudicated, the Court indicated that the
Board should have specifically referenced the DVB Circular and
discussed the RO's compliance with the Circular's claim-
development procedures).
Service personnel records support that the Veteran served onboard
the USS W.A. Mann, USS Gen. W.M. Mitchell, USS Washburn, and USS
Point Defiance during service. His service personnel records
indicate that he worked as a rifleman, motor vehicle operator,
and auto mechanic during service. In this case, development has
not been completed to determine whether the Veteran's job duties
actually required him to handle asbestos.
In this respect, pursuant to the Veterans Claims Assistance Act
of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002); and 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009), the AOJ needs
to send the Veteran VCAA letters that specifically address his
claim for asbestosis. As such a remand is necessary to comply
with the notification duties to the Veteran required under the
VCAA. The letter must satisfy the notification requirements of
the VCAA by: (1) informing him about the information and evidence
not of record that is necessary to substantiate his claim for
service connection for asbestosis; (2) informing him about the
information and evidence the VA would seek to provide; and (3)
informing him about the information and evidence that he is
expected to provide. See also Pelegrini v. Principi, 18 Vet.
App. 112, 120-121 (2004) (Pelegrini II); Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002). Furthermore, this letter should
include an asbestos-exposure questionnaire requesting where,
when, and how the Veteran was exposed, the names of other
servicepersons with him when he was exposed, and whether any pre
or post-service work involved asbestos exposure, etc.
Next, the RO is directed to obtain complete copies of the
Veteran's service personnel records and records concerning his
service onboard the ships mentioned above to determine whether it
is as likely as not such shipboard service caused asbestos
exposure. In this regard, the VA is generally required to make
reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a). The
VA is required to obtain relevant records held or maintained by a
government entity. 38 U.S.C.A.
§ 5103A(c). When the VA attempts to obtain records from a
Federal department or agency, the efforts to obtain these records
must continue until they are obtained; unless it is reasonably
certain they do not exist or that further efforts to obtain them
would be futile. 38 U.S.C.A. § 5103A(b); 38 C.F.R. §§
3.159(c)(2), (c)(3). Under the duty to assist the Veteran, the
AOJ must make an attempt to confirm whether or not he was exposed
to asbestos during his service. See 38 U.S.C.A. § 5103A. Thus,
the AOJ should contact the following appropriate offices to
determine whether the Veteran was potentially exposed to asbestos
during his service: the U.S. Army Joint Services and Research
Center (JSRRC) (formerly known as USASCURR), the National
Personnel Records Center (NPRC), and the U.S. Marine Corps.
Following further development of evidence regarding the Veteran's
alleged exposure to asbestos during service, if, and only if,
asbestos exposure during service is confirmed, the VA should
obtain a medical opinion addressing the relationship, if any,
between the Veteran's currently diagnosed asbestos and his
asbestos exposure during military service.
Next, with regard to the Veteran's currently diagnosed silicosis,
the Joint Remand contends that the Veteran was not provided a
medical examination relating to his claim of entitlement to
service connection for silicosis, despite the Veteran's competent
statements of in-service exposure to silica and a current
diagnosis of silicosis, suggesting a nexus between any in-service
exposure and his current diagnosis.
In this regard, in disability compensation (service-connection)
claims, VA must provide a medical examination when there is (1)
competent evidence of a current disability or persistent or
recurrent symptoms of a disability, (2) evidence establishing
that an event, injury, or disease occurred in service or
establishing certain diseases manifesting during an applicable
presumptive period for which the claimant qualifies, and (3) an
indication that the disability or persistent or recurrent
symptoms of a disability may be associated with the veteran's
service or with another service-connected disability, but (4)
insufficient competent medical evidence on file for VA to make a
decision on the claim. See McLendon v. Nicholson, 20 Vet. App.
79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R.
§ 3.159(c)(4).
Here, the Veteran has provided competent statements that he was
exposed to silica as a result of sandblasting during service.
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007);
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). He currently has a
diagnosis of silicosis.
Thus, in light of competent and credible statements regarding in-
service exposure to silica and a current diagnosis of silicosis,
suggesting a possible nexus between the two, and the Court's
holding in McLendon, supra, a comprehensive VA medical
examination and opinion are needed to determine the exact nature
and etiology of the Veteran's silicosis and whether any current
such disorder is related to his military service, including his
alleged in-service exposure to silica.
In reference to the Veteran's bilateral hearing loss claim, the
Joint Remand indicates that the Board failed to provide adequate
reasons and bases for its denial of the Veteran's claim of
entitlement to service connection for bilateral hearing loss. It
asserts that the Board failed to account for a July 2004 VA nexus
opinion that indicated a favorable connection between the
Veteran's left ear hearing loss and his alleged in-service
exposure to acoustic trauma. Further, a September 2008 VA
examiner failed to consider whether in-service exposure to
acoustic trauma was as likely as not the cause of the Veteran's
current hearing loss. The September 2008 VA examiner also
indicated that further testing is necessary to determine the
etiology of the Veteran's bilateral hearing loss. Thus, another
VA examination is necessary for further testing and to make such
a determination.
Finally, in reference to the Veteran's bilateral tinnitus, the
Joint Remand indicates that the Veteran has provided competent
statements regarding in-service onset of tinnitus, and he
currently has a diagnosis of bilateral tinnitus; thus, a VA
examination is necessary to determine whether his alleged in-
service onset of tinnitus and current diagnosis of tinnitus are
related. See McLendon, 20 Vet. App. at 79.
Accordingly, the case is REMANDED for the following action:
1. Send the Veteran a VCAA-compliant notice
letter notifying the Veteran and his
representative as to any information or lay
or medical evidence not previously provided
that is necessary to substantiate his claim
for service connection for asbestosis, what
information or evidence the Veteran should
provide, and what information or evidence the
VA will attempt to obtain on his behalf. In
addition, this letter should include an
asbestos-exposure questionnaire requesting
where, when, and how the Veteran was exposed,
the names of other servicepersons with him
when he was exposed, and whether any pre or
post- service work involved asbestos
exposure, etc.
2. Request verification of the Veteran's
alleged in-service asbestos exposure aboard
the USS W.A. Mann, USS Gen. W.M. Mitchell,
USS Washburn, and USS Point Defiance, and
verification of whether it is likely that the
Veteran was exposed to asbestos in the course
of his assigned duties within the MOS noted
in his service records. If no such opinion
can be given, reasons as to why this is so
must be provided. All efforts to obtain
these records should be fully documented, and
a negative response is required if no records
are available.
Requests should be made to:
a. The U.S. Army Joint Services and Research
Center (JSRRC) (formerly known as USASCURR);
b. The National Personnel Records Center
(NPRC);
c. The U.S. Marine Corps.
3. If, and only if, asbestos exposure during
service is confirmed per the above
development, then arrange for the Veteran to
be examined by an appropriate physician to
determine the etiology of his current
asbestosis. The claims folder and a copy of
this remand must be made available to the
physician for review of the case. A notation
to the effect that this record review took
place should be included in the report of the
examiner.
All indicated tests and studies (including X-
rays) should be accomplished (with all
results made available to the requesting
physician prior to the completion of his or
her report), and all clinical findings should
be reported in detail and correlated to a
specific diagnosis. The examiner should
express an opinion regarding the likely
etiology of the Veteran's asbestosis,
specifically whether the asbestosis is at
least as likely as not related to any in-
service exposure to asbestos or is otherwise
related to service. The examiner must
explain the rationale for all opinions given.
In addition, any possible post-service
exposure to asbestos as the result of the
Veteran's employment at a paper mill from
1966 to 2001 also should be clearly discussed
and a rationale should be provided as to
whether the Veteran's asbestosis is the
result of such post-service exposure.
The term "at least as likely as not" does not
mean within the realm of medical possibility,
but rather the weight of medical evidence
both for and against a conclusion is so
evenly divided that it is as medically sound
to find in favor of that conclusion as it is
to find against it. The examiner should
include a complete explanation with his or
her opinion, based on findings on examination
and information obtained from review of the
record. If the examiner is unable to provide
the requested opinion, the examination report
should so state.
The Veteran is hereby advised that failure to
report for a scheduled VA examination without
good cause shown may have adverse
consequences for his claim.
4. Schedule the Veteran for a VA examination
by an appropriate specialist to determine the
nature and etiology of any silicosis. The
claims file must be made available for review
of his pertinent medical and other history,
particularly the records of any relevant
treatment.
The examination should include any necessary
diagnostic testing or evaluation.
Based on a physical examination and
comprehensive review of the claims file, the
examiner is asked to indicate:
(a) whether the Veteran currently has any
silicosis; and
(b) if so, whether it is at least as likely
as not (50 percent or more probable) any such
disorder the Veteran has is associated with
his active duty service, where he competently
and credibly stated he was exposed to silica
as a result of sandblasting.
In offering any opinion, the examiner must
consider the full record, to include all
medical and lay evidence of record, regarding
the incurrence of the Veteran's silica. The
rationale for any opinion offered should be
provided.
The term "at least as likely as not" does not
mean within the realm of medical possibility,
but rather the weight of medical evidence
both for and against a conclusion is so
evenly divided that it is as medically sound
to find in favor of that conclusion as it is
to find against it. The examiner should
include a complete explanation with his or
her opinion, based on findings on examination
and information obtained from review of the
record. If the examiner is unable to provide
the requested opinion, the examination report
should so state.
The Veteran is hereby advised that failure to
report for a scheduled VA examination without
good cause shown may have adverse
consequences for his claim.
5. Thereafter, schedule the Veteran for a VA
examination by an appropriate specialist to
determine the nature and etiology of his
bilateral hearing loss and bilateral
tinnitus. The claims file must be made
available for review of his pertinent medical
and other history.
The examination should include any necessary
diagnostic testing or evaluation to determine
the etiology of his bilateral hearing loss
and bilateral tinnitus. The examination also
should include an audiogram for both ears.
The results of any testing and of the
audiograms should be specifically indicated.
Based on a physical examination and
comprehensive review of the claims file, the
examiner is asked to indicate:
(a) whether the Veteran has current
bilateral hearing loss and bilateral
tinnitus,
(b) and if so, whether it is at least
as likely as not (50 percent or more
probable) the bilateral hearing loss and/or
bilateral tinnitus is associated with
service, including any reported exposure to
acoustic trauma. In making this critical
determination, the examiner should address
the significance, if any, the Veteran's
assertions of suffering from frequent ear
infections while he was in service. The
examiner also should discuss and address the
Veteran's Meniere's Disease, the date of its
onset, the significance that this disease
possibly had its onset after the onset of the
bilateral hearing loss and bilateral
tinnitus, and whether his bilateral hearing
loss and/or bilateral tinnitus is a result of
the Meniere's Disease.
The term "at least as likely as not" does
not mean merely within the realm of medical
possibility, but that the weight of medical
evidence both for and against a conclusion
such as causation is so evenly divided that
it is as medically sound to find in favor of
that conclusion as it is to find against it.
The examiner should discuss the rationale of
the opinion, whether favorable or
unfavorable, based on the findings on
examination and information obtained from
review of the record. If the examiner is
unable to provide the requested opinion,
please expressly indicate this and discuss
why this is not possible or feasible.
The Veteran is hereby advised that failure to
report for a scheduled VA examination without
good cause shown may have adverse
consequences for his claim.
6. Readjudicate the claims of service
connection for a lung disorder as due to
asbestos exposure, silicosis, bilateral
hearing loss, and bilateral tinnitus in light
of the VA examinations provided and any
additional medical evidence received since
the issuance of the supplemental statement of
the case (SSOC) in January 2009. If the
claims are not granted to the Veteran's
satisfaction, send him and his representative
another SSOC. It must contain notice of all
relevant actions taken on the claim for
benefits, to include a summary of the
evidence and discussion of all pertinent
regulations. The Veteran and his
representative should be given an opportunity
to respond to the supplemental statement of
the case before returning the file to the
Board for further appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by the
Court for additional development or other appropriate action must
be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2009).
_________________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).